electronic surveillanceElectronic Surveillance

by Graham Maranda

 

This article provides you an overview of electronic surveillance including the requirements at law concerning its use along with some pros and cons of these investigative tools.

 TYPES OF SURVEILLANCE

1.    Electronic surveillance comprises two major forms.  One is telephone interception and the other is listening device. Explaining it simply, telephone interception is the live capturing and recording of telephone calls into or out of a specified landline or mobile telephone number.  Listening device is a 'bug' planted in a specified place (house, commercial building, motor vehicle or other location) for the purpose of capturing and recording conversations between any number of persons.   

The capturing of conversations (telephone intercept and/or listening device) must be lawfully approved if any captured conversations are to be used as evidence in a court of law.  Moreover, the use of any electronic surveillance without lawful authority is unlawful and subject to judicial punishment. Basically, only law enforcement bodies can capture conversations without the approval / knowledge of the person.  If you are writing a story that includes use of electronic surveillance, please consider researching to ensure authenticity.  It is only recently the Queensland Parliament legislated use of electronic surveillance by their state police. 

2.    Physical Surveillance is where the target (suspect and/or premises) is placed under visual surveillance by a Surveillance Team.  Films commonly depict surveillance teams in action. These teams conduct direct visual surveillance supported by the use of note taking (audio or written), still photography and / or video recording. 

REQUIREMENTS AT LAW 

Telecommunications (Interception and Access) Act 1979 (Commonwealth) 

For a telephone intercept to be authorised, the law requires that the person using the telephone service is the person under investigation or directly associated with the person under investigation.  Application is made to a Judge (of a court created by Parliament).  The Judge requires, on sworn oath, information about what other investigation methods have been employed so far, how much benefit would be gained from the use of the interception method and how much it would likely invade the privacy of any person or persons.   

Information gained from an intercepted communication is not allowed to be communicated to any other person. In fact, information gleaned this way must be exempted under the Telephone Interception Act so it can be lawfully given in evidence.  Additionally, there are many regulatory requirements concerning how many days a telephone intercept can run, how the intercepted conversations are stored, and who may access them (only a select number of investigators on the case along with a few technical staff).  There is also strict requirement to discontinue intercepting if that service is no longer used by the targeted person/s (for example, the target has been arrested). 

Before you go creating a telephone intercept scene where your villain is implicated in the theft of a box of almond croissants, be aware that interception is only authorised where the offence being investigated falls within the definition of 'Serious Offence'. The 'long arm of the law' is not so long, in many cases.  So, what types of offences are considered serious at law? 

A quick layman's definition is: offences punishable by imprisonment for life or for a period of 7 years or more, and involves the loss of a person's life; serious personal injury or serious risk of personal injury (e.g. kidnapping); serious damage to property endangering the safety of persons; serious arson; trafficking drugs; serious fraud; serious loss of revenue to the Commonwealth, State or Territory; Bribery or Corruption; Child Pornography and Money Laundering.

Problems Associated with Interceptions 

The law is clear in stating that the investigator may not divulge that a telephone is intercepted. To disclose this or any information gathered from an intercept is a criminal offence.  You may recall the Bulldogs Rugby League matter investigated by the Police Integrity Commission where charges were recommended against two high ranking police because, in a meeting with Bulldogs Chief Malcolm Noad (April 5, 2004) those police communicated information to Noad that was obtained from a telephone intercept upon a Bulldogs player.  

Similarly, when investigating a serious crime (murder, kidnapping, sexual assault or armed robbery) the law compels that you do not disclose to the victim's immediate family how the investigation is progressing, where electronic surveillance is involved.  A good way to view the situation is through the theory of 'six degrees of separation', which suggests that everyone is only six 'human' steps away from any other person in the world. 

Another issue with electronic surveillance is that it is 'resource intensive'. Human resources must monitor, assess, log and transcribe the captured information.  Let's say, while monitoring conversations it becomes apparent that a totally separate crime is likely to be committed (such as bashing a crime opponent).  Resources would have to be deployed to assess the risks and then take preventive action to ensure this proposed criminal activity does not occur.  Electronic surveillance can uncover so many dilemmas, the situation can turn into 'Welcome to my Nightmare'.  You as writer may dream your wildest nightmare; it most likely has occurred in real life. 

Surveillance Devices Act 2007 (New South Wales) 

|image2|This new act replaces the Listening Devices Act 1984 (NSW).  A Surveillance Device includes a listening device, optical surveillance (video) device, tracking device (global positioning monitor) and data surveillance (computer tracking) device.  A Judge of the Supreme Court may issue a warrant for any of these devices, and a Magistrate is authorised to issue a warrant for a tracking device. 

A law enforcement officer (NSW Police, ICAC, NSW Crime Commission or Police Integrity Commission) can apply for a surveillance device warrant if that officer on reasonable ground suspects or believes a relevant offence has been, is being, is about to be or likely to be committed and the use of such device or devices is necessary to enable evidence to be obtained concerning the offence or the identity or location of the offender.  

Therefore, investigators can apply and be issued warrant to 'bug' a suspect's house, place a tracking device in their motor vehicle, have an optical camera set up monitoring the home and place of business along with devices in home, business and laptop computers (if authorised by the Judge). Oh, and by the way, someone may also be wearing a 'body wire' to capture conversations. Each surveillance device is a separate application sworn under oath by the applicant officer. 

Any information gathered by use of these devices is 'Protected Information'.  It is an offence to use, communicate or publish any protected information, of course except in criminal court proceedings.  However, as with the Telecommunications (Interception and Access) Act 1979 electronically captured information can be lawfully passed onto other agencies such as ASIO and other police jurisdictions where further offences have been detected and relate to that other agency.   

WALK A MILE IN MY SHOES 

Now, to paint a picture in your mind, of electronic surveillance, sit for a minute and throw together a re-load of your life over the past thirty to sixty days.  Ponder the discreet conversations you had on your landline and mobile telephone; consider what you received and sent via Gmail, hotmail or whatever.  When you met for a long lunch where your lips were loosened by white wine - what did you disclose or hear?   Was someone there wearing a body-wire?  Were you in a private home where a bug was installed?  Each time you drove your car - did you know the tracking device recorded exactly where you had been and for how long?  Is your own house like TV's Big Brother house - perhaps with a camera in certain rooms? 

Get the picture? 

© Graham Maranda

 

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